Davenport v. City of Ottawa

• Decision Date: 09 March 1895
• Parties: WILLIAM DAVENPORT v. THE CITY OF OTTAWA
• Court: Kansas Supreme Court

39 P. 708

54 Kan. 711

WILLIAM DAVENPORT v. THE CITY OF OTTAWA

Supreme Court of Kansas

March 9, 1895

Appeal from Franklin District Court.

THE defendant, William Davenport, was arrested and brought before the police court of the city of Ottawa, charged with having permitted gambling to be carried on in a store kept by him in Ottawa, and with having offered for sale and sold lottery tickets. He was found guilty by the police judge, and fined $ 5 on each of the two counts in the information. From this conviction he appealed to the district court, where a jury was waived, and the cause submitted to the court on the following agreed statement of facts:

"1. At all times hereinafter mentioned, the defendant was and is a partner in the firm of Davenport, Lathrop & Co., which firm is now and for several years last past has been operating a dry-goods store in good faith at No. 228 South Main street, Ottawa, Franklin county, Kansas; that they have now and at all times have had a large and first-class stock of dry goods, of the value of more than $ 10,000, and that they had in connection with said stock a good stock of millinery goods.

"2. Said firm, some days prior to October 19, 1894, placed in its window a box about 18 inches long by 8 inches wide, with a glass front, in which box said firm placed, so that the same could be seen, $ 25 in United States bills. The said box is and was locked. The said firm then advertised and offered to the public that all persons buying goods in their store to the amount of 50 cents or more, and paying for the same would be given a small iron key, and that the person getting the key that opened said box would receive the $ 25, there being but one key given, or to be given out, that would in fact unlock said box, and that no member of said firm or employe in said store should be entitled to or receive a key that any person holding a key is permitted to try to unlock said box therewith at any time between December 26 and 31 1894.

"3. On October 19, 1894, defendant sold to sundry persons dry goods out of said store for 50 cents and more, and received the pay therefor, and upon selling said goods and receiving such pay, he gave to such customers keys, that they might at the proper time try to unlock said box; to each of said keys was attached a card having printed thereon as follows:

"$ 25 FREE.

IN UNITED STATES NOTES.

$ 25 FREE.

"We have placed in our window a glass money box containing $ 25 in United States notes. We will give a key to every purchaser of 50 cents or more. One key only will unlock the box. This may be the one. Keys may be tried any time between December 26 to 31, inclusive, 1894. Every one holding a key will be permitted to try and unlock the box, and the person holding the key that will unlock the box will be presented with the contents, $ 25, absolutely free, without restrictions or reserve. Keys will not be noticed unless attached to the original tag. No employe allowed to have any keys.

DAVENPORT LATHROP & CO.,

"One-price house. (Read the other side.) Ottawa, Kan.

"$ 25 FREE.

$ 25 FREE.

"Davenport Lathrop & Co. stand alone. No matter how low goods are priced elsewhere, you can always buy them cheaper of Davenport, Lathrop & Co. Visit our store, and get a key that may be worth $ 25 to you. After trying keys, please leave them at the store. (Read the other side.)

"4. At the time defendant delivered said keys and cards to said customers, he did not know whether said keys, or either of them, would unlock said box.

"5. The said firm and said defendant made no extra charge by reason of said keys, but sold the goods in the usual way at the same price that such character of goods had been and was being by said firm and other merchants sold in the market in said city at and prior to the time that said firm began giving out said keys. The said firm made no charge directly or indirectly for said keys, or for the privilege to which the holders of said keys were entitled, unless the purchase and payment of said goods be construed to be a charge."

The sections of the ordinance on which the prosecution was based are as follows:

"SEC. 40. It shall be unlawful for any person or persons to sell or offer for sale, in the city of Ottawa, Kan., any lottery ticket or part thereof, or to print and publish in said city any advertisement of any lottery, or of the sale of any ticket or part thereof in any lottery. Any person who shall do any of the acts declared unlawful in this section shall, upon conviction thereof in the police court, be fined in any sum not exceeding $ 100, or by imprisonment in the city prison not exceeding 90 days, or by both such fine and imprisonment."

"ART. 2, SEC. 13. It shall be unlawful for any person or persons to set up, open, keep or maintain any gaming or gambling house in the city of Ottawa, or lease or let any house or other building for the purpose of setting up or keeping therein gaming or gambling devices, or permit any description of gambling, or playing any game of chance for money, goods or other valuable thing, in any dwelling house, store, booth, tent, shop or other tenement, building or place used, owned or occupied by any such person, and any person who shall be guilty of any act declared unlawful in this section shall, on conviction, be fined in any sum not exceeding $ 100."

The district court also found the defendant guilty, and assessed the same punishment. From this judgment he appeals.

Judgment affirmed.

Smart & Muesse, for appellant:

Did the defendant sell, offer for sale or cause to be sold lottery tickets? We submit that he did not. Out of the many definitions given by courts and law writers for the term "lottery," this court has adopted that of Folger, J., in Hull v. Ruggles, 56 N.Y. 424: "Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery." The State, ex rel., v. Mercantile Association, 45 Kan. 354. There are, then, two indispensable elements in the above definition: (1) A pecuniary consideration paid; (2) a determination by chance what and how much he who pays the money is to have for it. The pecuniary consideration must be paid in whole or in part for the chance, because that is the evil sought to be remedied --"the payment of small sums of money in the hope of gaining a larger amount."

The element of consideration for the chance is entirely lacking in this case. Agreed statement, fifth paragraph. But it will be argued by counsel that the money paid for goods was paid as well for the chance. Not so. The purchaser could not buy a chance without knowing it. If he bought and paid for the goods, and afterwards the merchant gave him that which represented a chance, it cannot be said that he bought the chance; the chance, in that case, was not the inducement that led the purchaser to part with his money.

The city relies largely upon The State v. Mumford, 73 Mo. 647, but in that case the first utterance of the court is: "Proprietors of a new paper offered as an inducement," etc. Of course, in that case, the subscription was the consideration, and it was sufficient. We are not called upon in this case to determine the question, Could the defendant, with the scheme he had, violate the ordinance by selling a lottery ticket? but the question is, Did he, as appears from the agreed statement of facts?

Hudelson v. The State, 94 Ind. 426, 48 Am. Rep. 171, is not in point. That case was tried upon the theory that the chance was what induced the purchase of the goods. Not so in the case at bar. Here it is expressly agreed that there was no consideration for the chance, either directly or indirectly, unless the purchase and payment of goods, purchased and paid for before the purchaser knew anything of the chance, can be construed to be a consideration. In the case at bar, the defendant either made a sale or he did not; if he did not, he is not guilty. We submit he made no sale; and then the question, Was the scheme a lottery? becomes a secondary matter. But counsel may urge that the hope of inducing people to visit his store and thereby increase business was a consideration for giving the key, and thus making out a sale. That could not be for two reasons: First, we have agreed that it was not; second such benefits are too remote. Cross v. People, 36 Am. Rep. 292 (18 Colo. 321); Yellow-Stone Kit v. The State, 88 Ala. 196; 16 Am....